HA4? 
W66n 


Need   of   Social  Statistics 
As    an   Aid   to   the   Courts 

Vk-alter   p,   V^illcox 


l^i 


l»»J|«;i|Ojj»)mno<;  m 

saiiddns  Auvtiaii 


azi 


UNIVERSITY  OF  CALIFORNIA 
AT   LOS  ANGELES 


GIFT  OF 

JAIiES  H.    TUFTS 


l*A.,tN 


The  Need  of  Social  Statistics 
as  an  Aid  to  the  Courts 


BY 


WALTER  F.  WILLCOX 


Reprinted  from 

AMERICAN  LAW  REVIEW 

March-April,  1913 


»  •  • . 
••  •  »  . 


e  •  • 


*•«    •••    •(« 


. 


THE  NEED  OF  SOCIAL  STATISTICS 
<l  AS  AN  AID  TO  THE  COURTS 


2515^5 


THE  NEED  OF  SOCIAL  STATISTICS  AS  AN  AID  TO 

THE  COURTS. 

Of  recent  years  and  especially  of  recent  months  public 
opinion  and  political  parties  have  been  aroused,  as  they 
have  not  since  the  Dred  Scot  case,  over  certain  judicial 
decisions  and  their  relation  to  the  public  welfare.  One 
outside  both  of  politics  and  of  law  might  think  it  prudent 
to  be  silent  on  this  subject.  But  on  a  matter  of  such  mo- 
ment every  phase  of  opinion  is  entitled  to  a  hearing  and 
we  may  have  faith  that  "in  the  multitude  of  counsellors 
there  is  safety. ' '  Among  that  multitude  I  have  heard  none 
claiming  to  speak  for  the  statistician.  Believing  as  I  do 
that  this  small  but  growing  group  has  a  point  of  view  which 
deserves  attention,  I  shall  venture  this  afternoon  to  present 
and  defend  their  position,  as  I  conceive  it. 

What  I  have  to  say  may  be  introduced  with  a  quotation 
from  a  distinguished  jurist  who,  in  part,  it  may  be,  be- 
cause of  his  work  as  a  student  in  natural  science  and  later 
his  teaching  of  law  at  three  great  universities,  has  a 
broader  outlook  and  more  familiaritv  with  related  fields  of 
thought  than  is  likely  to  be  the  lot  of  the  lawyer  or  judge 
immersed  in  the  routine  duties  of  an  exacting  profession. 
Professor  Pound  in  closing  a  recent  series  of  suggestive 
articles  in  the  Uarvard  Law  Review  says:  "Not  a  little 
of  the  world-wide  discontent  with  our  present  legal  order 
is  due  to  modes  of  juristic  thought  and  juridical  method 
which  result  from  want  of  'team-work'  between  jurispru- 
dence and  tlic  other  social  scioncos." 

The  "juridical  method"  is  primarily  deductive,  deriv- 
ing conclusions  from  the  principles  of  the  law  applicable  to 
the  case  at  bar.  Philosophical  jurisprudence  subjects 
those  principles  to  a  critical  analysis,  discovers  the  large 
empirical  element  they  contain,  and  by  showing  how  they 


200  47    AMERICAN    LAW    REVIEW. 

alter  with  i^rowing  experience  and  with  changes  in  the  im- 
plicit political  or  social  presuppositions  upon  which  they 
are  bnilt  undermines  that  almost  religious  faith  in  their 
permanent  social  value  common  among  lawyers  and  judges. 
But  even  philosophical  jurisprudence,  like  a  great  part  of 
economies  and  of  sociology,  devotes  much  time  to  the 
definition,  elucidation  and  criticism  of  terms  and  con- 
ceptions and  to  deduction  from  principles — intellectual 
processes  in  which  the  lawyer  and  the  judge  are  already 
trained. 

If  the  lawver  should  turn  to  economic  historv  and  sta- 
tistics,  which  are  perhaps  the  most  inductive  branches  of 
social  science,  he  would  find  a  change  in  method  sharply 
marked.  The  contrast  between  the  mental  characteristics 
exercised,  on  the  one  hand,  in  stating  legal  principles  neatly 
and  clearly  and  applying  them  convincingly  to  a  given  or 
assumed  state  of  facts,  and  those  exercised,  on  the  other 
hand,  in  the  patient  investigation  of  the  facts  as  they  have 
been  and  are  is  of  the  widest.  For  this  reason  an  intelli- 
gent and  sympathetic  comprehension  of  the  methods  of  as- 
certaining social  fact  would  be  of  the  first  value  to  a  judge 
as  supplementing  the  somewhat  excessively  deductive  train- 
ing he  usually  obtains  from  his  profession. 

It  may  be  said  in  reply  that  the  facts  are  given  to  the 
Appellate  Court,  that  in  previous  trials  they  have  been  ad- 
mitted or  established,  and  that  all  the  judge  has  to  do  is  to 
apply  his  principles.  But  this  statement  I  am  compelled 
to  challenge.  The  very  contrary  is  often  the  truth.  In 
the  great  majority  of  decisions  belonging  to  the  class  in 
dispute  the  court  has  by  implication,  if  not  by  direct  state- 
ment, passed  upon  questions  of  fact  so  important  that  if 
they  had  been  differently  viewed  the  verdict  would  have 
been  other  than  it  was.  In  other  words,  my  main  conten- 
tion is  that  many,  perhaps  most,  of  the  court  decisions 
which  have  aroused  dissatisfaction  and  criticism  have 
turned  on  questions  of  social  fact,  and  fact  often  im- 
perfectly apprehended  or  established. 


SOCIAL  STATISTICS  AS  AN  AID  TO  THE  COUETS.  261 

In  order  to  avoid  controverted  matter  at  the  start,  I 
will  draw  my  first  illustration  from  a  decision  neither  made 
by  a  court  nor  arousing  £fny  considerable  dissatisfaction, 
that  rendered  by  the  Anthracite  Coal  Strike  Commission 
of  1902-03. 

One  claim  made  before  that  Commission  by  the  union 
mine  workers,  the  only  one  with  which  I  am  now  concerned, 
was  for  an  increase  of  20  per  cent,  in  their  wages.  For 
this  claim  the  following  reason,  among  others,  was  as- 
signed: ''The  rate  of  wages  in  the  anthracite  coal  fields  is 
insufficient  to  compensate  the  mine  workers  in  view  of  the 
dangerous  character  of  the  occupation  in  relation  to  acci- 
dents, the  liability  to  serious  and  permanent  disease,  the 
high  death  rate  and  the  short  trade  life  incident  to  this  em- 
ployment." The  Commission  found  and  reported  that 
anthracite  coal  mining  "should  be  classed  as  one  of  the 
dangerous  industries  of  the  country,  ranking  with  several 
of  the  most  dangerous." 

No  evidence  was  introduced  and  I  believe  no  important 
evidence  could  then  or  can  now  be  found  regarding  the 
comparative  liability  of  American  anthracite  coal  miners 
*'to  serious  and  permanent  disease,  a  high  death  rate  and  a 
short  trade  life,"  and  yet  these  points  seem  to  go  to  the 
essence  of  the  miners'  claim.  In  determining  the  total 
death  rate  and  the  length  of  trade  life  accidents  are  usually 
a  minor  factor.  In  the  eyes  of  the  public  and  probably  in 
those  of  the  miners  they  bulk  much  larger  than  the  facts,  if 
known,  would  warrant. 

To  show  this,  let  me  turn  to  some  foreign  statistics,  not 
assuming  that  they  would  hold  true  for  Pennsylvania,  but 
believing  they  point  to  a  line  of  evidence  which  we  sorely 
need  for  this  country.  Let  us  suppose  a  demand  for  a  20 
per  cent,  increase  of  coal  miners'  wages  had  been  made  in 
Elnglaiid,  sup[)ort('(l  ])y  similar  clainis,  and  examine  the  evi- 
dence there  available  to  aid  in  its  solution.  During  the 
years  1900-1902  figures  were  carefully  gathered  showing 
the  deatli   rate  from  accidents   and   other  causes   among 


262  47    AMERICAN    LAW    REVIEW. 

nearly  half  a  million  coal  miners.  The  figures  show  that 
fatal  accidents  were  more  than  twice  as  common  among 
coal  miners  as  among  all  occupied  and  retired  males  of 
like  age.  Thus,  if  an  inference  from  England  to  Pennsyl- 
vania were  allowable,  the  finding  of  the  Commission  that 
anthracite  coal  mining  is  ''one  of  the  dangerous  indus- 
tries"— already  well  supported  by  Pennsylvania  figures — 
seems  confirmed.  But  looking  to  the  death  rate  from  all 
causes,  a  much  more  significant  evidence  of  the  length  of 
trade  life,  the  death  rate  of  English  coal  miners  at  ages 
25-64  was  between  eleven  and  twelve  per  cent,  below  the 
average  of  all  working  males.  Why  does  coal  mining,  at 
least  in  England,  notwithstanding  the  frequency  of  fatal 
accidents,  seem  to  be  a  healthy  occupation?  Because  the 
very  high  mortality  from  accidents  is  more  than  neutral- 
ized by  the  low  mortality  from  certain  forms  of  disease, 
notably  consumption.  How  far  these  results  would  apply 
to  anthracite  coal  miners  in  Pennsylvania,  no  one  can  tell. 

The  second  case  of  which  I  wish  to  speak  is  the  well- 
known  bake-shop  case.^  The  New  York  law  under  discus- 
sion was  one  of  the  earliest  American  statutes  restricting 
the  hours  of  men's  labor.  The  work  of  bakers  was  lim- 
ited to  ten  hours  a  day  or  60  a  week,  and  the  statute,  al- 
though a  part  of  the  labor  law,  was  defended  and  justified 
as  protecting  the  health  of  the  consumers  of  bread,  or  of 
the  bakers  themselves.  Nineteen  judges  passed  upon  the 
statute,  ten  thinking  it  constitutional  and  nine  unconstitu- 
tional ;  but,  as  five  of  the  nine  were  members  of  the  United 
States  Supreme  Court,  the  last  and  binding  decision  was 
adverse. 

From  the  numerous  opinions  in  the  case  it  is  possible  to 
derive  this  general  conclusioii :  If  the  occupation  of  a 
baker  as  tlien  followed  in  the  bake-shops  of  cities  in  New 
York  was  so  harmful  to  those  engaged  in  it  or  through  its 
products  was  so  injurious  or  menacing  to  the  general  health 
as  to  invite  special  legislation,  then  the  statute  was  an 

>  People  V.  Lochner,  177  N.  Y.  145  and  198  U.  S.  45. 


SOCIAL,  STATISTICS  AS  AN"  AID  TO  THE  COUETS.  263 

admissible  exercise  of  the  police  power.  But  if  neither  of 
these  conditions  was  met,  the  statute  was  unconstitutional. 
Thus  Judge  Parker  of  the  Court  of  Appeals  wrote :  ' '  The 
published  medical  opinions  and  vital  statistics  .  .  .  fully 
justify  the  section  under  review  as  one  to  protect  the  health 
of  the  employees ; ' '  and  Justice  Vann,  defending  the  same 
conclusion,  wrote :  "I  do  not  think  the  regulation  in  ques- 
tion can  be  sustained  unless  we  are  able  to  say  from  com- 
mon knowledge  that  working  in  a  bakery  .  .  .  is  an 
unhealthy  emploj^nent. "  On  the  other  hand.  Justice  Bart- 
lett  of  the  same  court  admitted  that  the  State  might  regu- 
late the  hours  of  labor  in  any  vocation  pursued  at  the  risk 
of  health,  but  expressed  his  belief  "that  the  occupation  of 
a  baker  did  not  fall  within  that  class"  and  so  voted  against 
the  validity  of  the  statute;  and  Justice  Peckham  of  the 
United  States  Supreme  Court  in  writing  the  prevailing 
opinion  said:  ''There  can  be  no  fair  doubt  that  the  trade 
of  a  baker  in  and  of  itself  is  not  an  unhealthy  one  to  that 
degree  wliich  would  authorize  the  legislature  to  pass  such  a 
statute."  Other  justices,  like  Harlan  and  Holmes,  upheld 
the  statute  on  the  ground  that  whether  the  occupation  was 
healthy  or  unhealthy  was  a  question  of  fact  upon  which  the 
court  should  accept  the  opinion  of  the  Legislature  implied 
in  the  passage  of  the  law.  On  the  whole,  a  study  of  the 
opinions  warrants  a  belief  that  the  law  would  have  been 
hold  constitutional  by  every  one  of  the  judges  if  either  of 
the  following  conditions  had  been  met:  If  the  judge  had 
accepted  the  opinion  of  the  Legislature  affirming  the  un- 
healthy character  of  the  baker's  occupation  as  conclusive; 
or  it',  on  iinlfix-ndciit ly  reviewing  the  evidence  offered  in 
support  of  tiiat  conclusion,  he  had  found  it  convincing. 

This  decision  tlms  tnnicd  on  ;i  <|Uostion  of  fact.  Upon 
that  question  the  evidence  cited  by  tiic  Judges  consisted  in 
a  series  of  opinions  froni  medical  wi'itci's  jind  vague  refer- 
ences to  vital  statistics.  Mulhall's  Dictionary  of  Statistics, 
that  })f'te  noire  of  careful  statisticians,  was  cited  four  times. 
I  doubt  whether  any  member  of  t  his  Association  would  hold 


264  47    AMERICAN    LAW    REVIEW. 

that  the  evidence  mentioiied  in  the  numerous  opinions  of  the 
judges  warranted  a  confident  answer  either  affirmative  or 
negative  to  the  question,  Was  the  occupation  of  a  baker  in 
the  cities  of  New  York  State  a  very  unhealthy  one? 

If  a  similar  question  had  arisen  in  England  the  answer 
to  it  would  have  been  clear  and  probably  convincing.  The 
death  rate  of  bakers  25-64  years  of  age  in  1891  and  in  1901 
was  to  the  death  rate  of  all  males  at  the  same  ages  as  92  is 
to  100;  in  other  words,  the  occupation  was  somewhat 
healthier  than  the  average.  During  the  decade  1890-1900 
the  death  rate  of  bakers  fell,  the  improvement  being  great- 
est in  the  case  of  consumption  and  diseases  of  the  respira- 
tory system.  AVhether  similarly  a  low  death  rate  and 
rapid  improvement  in  the  health  of  bakers  in  this  country 
or  in  New  York  State  would  appear,  if  the  facts  were 
known,  no  one  can  safely  assert.  The  even  division  of  the 
judges  arose  largely  from  the  circumstance  that  most  of 
them  felt  bound  to  reach  a  conclusion  of  fact  when  the  evi- 
dence was  inconclusive  and  about  equally  balanced. 

The  third  and  last  case  of  which  I  wish  to  speak  is  the 
one  in  which  the  New  York  Court  of  Appeals  in  1911 
unanimously  held  the  Workman's  Compensation  Act  of 
1910  unconstitutional.^ 

The  statute  was  based  upon  a  classification  of  occupa- 
tions under  which  eight  especially  dangerous  kinds  of  em- 
ployment were  selected  for  protection  by  a  new  system  of 
compensation  in  case  of  accident.  To  this  classification  no 
serious  objection  was  raised  by  the  court.  The  central 
question  decided  in  this  case,  as  in  the  bake-shop  case,  was 
that  the  statute  was  not  a  legitimate  exercise  of  the  police 
power,  that  is,  "the  power  of  promoting  the  public  welfare 
by  restraining  and  regulating  the  use  of  liberty  and  prop- 
erty.^ On  this  point  the  court  said  that  the  statute  "does 
nothing  to  conserve  the  health,  safety  or  morals  of  the 
employees,"  and,  elsewhere,  that  it  "contains  not  a  single 

'  Ives  V.   South   Buffalo   Ry.   Co.,  '  Freund,  Police  Power,  p.  ill. 

201  N.  Y.  271. 


SOCIAL  STATISTICS  AS  AN  AID  TO  THE  COURTS.  265 

provision  which  can  be  said  to  make  for  the  safety,  health 
or  morals  of  the  employees."  From  the  context  of  these 
passages  we  may  infer  that  if  the  court  had  taken  a  differ- 
ent view,  if  it  had  believed  that  the  statute  did  make  for 
the  safety  or  health  of  the  employees,  it  would  have  decided 
that  the  statute  was  a  valid  exercise  of  the  police  power 
and  constitutional. 

Now  the  striking  thing  about  these  positions  of  the  court, 
like  those  in  the  other  two  cases,  is  that  they  are  not  con- 
clusions of  law,  but  statements  of  fact.  As  such  it  requires 
no  special  training  in  the  law  to  examine  them. 

The  United  States  is  believed  to  have  an  extremely  high 
accident  rate,  but  our  statistics  to  confirm  or  correct  the 
opinion  are  meager,  if  not  inconclusive.  One  of  the  main 
purposes  of  the  law  declared  unconstitutional  was  to  lower 
that  accident  rate  in  those  industries  as  well  as  to  assure 
compensation.  The  court  seems  to  assume  without  giving 
its  reasons  that  this  purpose  would  not  be  realized.  The 
general  testimony  of  students  of  accident  statistics  in  for- 
eign countries  where  legislation  aiming  at  the  same  end 
has  for  years  been  in  force  is  to  the  effect  that  the  propor- 
tion of  accidents  to  one  thousand  employees  has  increased, 
that  the  proportion  of  serious  accidents  to  one  thousand 
employees  has  been  stationary  or  has  decreased,  but  that 
this  decrease,  if  it  existed,  has  been  offset  or  more  than 
offset  by  the  apparent  increase  of  minor  accidents.  Thus 
an  examination  l)y  Dr.  H.  J.  Harris  of  the  accident  sta- 
tistics of  Germany,  Austria  and  Great  Britain,  published 
in  the  proceedings  of  our  Association  for  last  March,  con- 
cludes that  *'tho  progress  in  the  movement  for  reducing  the 
risk  of  indnstry  has  resulted  in  distinctly  reducing  the  risk 
of  death  or  permanent  disablement,  but  has  not  yet  dimin- 
ished the  risk  of  temporary  disablement."^  I  (inotc  also 
the  statements  of  M.  A.  Fontaine,  the  French  Director  of 
Labor,  presented  a  few  weeks  ago  before  the  Interna- 
tional Congress  on  Hygiene  .-ind  Demography  at  Washing- 

\        *Am.  Stat.  Absu.   I'uIj..  vol.  xiii.,  I*.  27  (March  1912). 


266  47    AMERICAN    LAW    REVIEW. 

ton :  ' '  If,  ill  order  to  eliminate  the  influence  of  the  increase 
of  the  number  of  workmen,  one  refers  the  numbers  of  ac- 
cidents to  one  thousand  workmen,  it  is  apparent  that  there 
has  been  [sc.  in  France]  no  increase  in  severe  accidents, 
that  the  actual  danger  of  the  industries  has  not  augmented, 
but  that  there  is  a  characteristic  and  important  increase 
of  minor  accidents.  This  change  is  attributed  to  the  in- 
creasing care  with  which  accidents  are  reported  and  still 
more  to  the  legal  modifications  which  influence  the  work- 
men to  prolong  short,  temporary  disabilities  in  order  to 
get  their  remuneration."^  The  usual  and  probably  the 
correct  explanation  of  this  fact  in  other  countries  also  is 
that  many  minor  accidents  formerly  were  not  reported  at 
all,  but  now  are  registered.  If  this  explanation  be  ac- 
cepted, then  the  tendency  in  foreign  countries  has  been  to- 
wards a  real  decrease  of  serious  accidents  and  perhaps 
towards  a  real  decrease  of  all,  though  not  of  reported, 
minor  accidents.  On  the  same  point  the  opinion  of  the 
commission  recommending  the  law  appears  in  the  follow- 
ing sentence  of  its  report  signed  by  13  of  the  14  members : 
''It  is  the  opinion  of  a  great  many  of  the  employers  tes- 
tifying before  us  on  the  subject  that  the  compensation  sys- 
tem will  have  the  effect  of  making  the  employers  more 
careful  and  with  that  we  agree,  nor  does  it  seem  in  any 
way  probable  that  the  compensation  system  would  have 
any  effect  on  making  workmen  careless."^  This  opinion 
of  the  Commission  was  in  line  with  evidence  showing  that 
under  the  present  system  in  three-eighths  of  the  cases  of 
fatal  accident  investigated  nothing  was  paid  to  the  surviv- 
ing representatives  of  the  deceased,  in  one-eighth  only  the 
funeral  expenses  Avere  paid  and  in  nearly  three-eighths 
more  the  payment  was  less  than  $500.  In  cases  of  partial 
disability,  temporary  or  permanent,  the  proportion  receiv- 
ing no  compensation  was  even  higher.  This  evidence,  care- 
fully considered  by  the  Commission  and  presented  in  its 

*  Abstracts  of  Papers  at  Interna-  "  Wainwright    Commission,    First 

tional    Congress    on    Hygiene     and      Report,  p.  56. 
Demography,  pp.  284,  285. 


SOCIAL  STATISTICS  AS  AN  AID  TO  THE  COURTS.  267 

report,  seems  fully  to  justify  its  opinion.  If  the  amount  to 
be  paid  out  by  employers  for  accidents  were  to  be  increased 
several  times,  as  the  proposed  system  would  do,  the  motives 
leading  the  employer  to  try  to  diminish  the  number  of  such 
accidents  would  be  correspondingly  strengthened. 

The  conclusion  of  the  New  York  Commission  has  been 
recently  supported  by  that  of  the  Massachusetts  Commis- 
sion on  Compensation  for  Industrial  Accidents.  It  recom- 
mended an  elective  compensation  law  and  with  the  New 
York  decision  in  hand  it  unanimously  rejected  the  con- 
clusion of  that  court  regarding  the  effect  of  such  legislation 
upon  the  safety  and  health  of  employees  and  reported  the 
following  finding:  "No  one  can  study  the  history  of  this 
subject  in  other  countries  without  being  impressed  by  the 
fact  that  the  operation  of  compensation  laws  in  several  of 
them  has  materially  reduced  the  number  of  injuries  in  fac- 
tories and  workshops,  especially  those  resulting  from  ma- 
chine operation.""  On  the  basis  of  this  experience  as  well 
as  other  evidence,  the  Massachusetts  Commission  added : 
"Under  the  terms  of  the  new  law  .  .  .  the  employers 
will  realize  that  it  is  of  the  utmost  consequence  in  a  finan- 
cial as  well  as  a  humanitarian  way  to  prevent  the  injury. 
It  is  believed  that  it  will  l)e  possible  to  decrease  very  largely 
the  number  of  accidents  and  this  aspect  of  the  law  is  re- 
garded as  its  most  inii)ortant  part."" 

The  New  York  court  seems  to  believe  that  an  indirect 
method  of  decreasing  the  nnmbcr  of  accidents,  namely,  by 
increasing  the  employer's  pecuniary  interest  in  pi-cvcnting 
them,  is  unjustified.  It  lianlly  realizes  that  in  securing 
social  change  indirect  methods  are  often  the  most  effective. 
The  opinion  of  the  Tjegislature,  also,  that  the  new  law  wonld 
diminish  accidents  seems  to  ])e  clearly  iiidieatec!  l.y  its  ])ass- 
age  of  the  bill.  \V<'  hav  then  npon  one  side  <>f  I  his  issue 
of  fact  the  conclusion  of  statisticians  regarding  \\\r  prol)- 
able  effef^t  of  similar  laws  in  foreign  eonntries,  tin;  ctnieln- 
sio?i  of  the  New  York  Commission  and  tlw  Massnchns(«lls 

'  Jtrport.   ]).   40.  '  Ihid. 


268  47    AMERICAN    LAW    REVIEW. 

Commission  and  tlie  statistical  evidence  npon  whicli  they 
based  that  conchision  and  the  opinion  of  the  Legislature 
which  passed  the  law;  and  upon  the  other,  the  unanimous 
verdict  of  the  Court  of  Appeals. 

Another  line  of  evidence  also  leads  to  the  belief  that  the 
decision  in  question  is  entitled  to  scant  consideration  except 
from  such  courts  as  are  bound  to  accept  it  as  authority. 
The  evidence  is  rather  psychological  than  statistical,  but 
still  it  may  be  mentioned  as  supporting  the  argument  that 
courts  are  ill  adapted  to  deal  with  these  questions  of  social 
fact  and  that  a  speedy  development  of  sound  statistical 
work  in  this  field  is  of  capital  importance  for  courts,  judges 
and  Legislatures. 

If  a  statute  passed  in  the  exercise  of  the  police  power  is 
attacked  as  unconstitutional,  the  court  usually  admits  the 
existence  of  a  presumption  in  favor  of  its  constitutionality. 
As  Justice  Harlan  put  it  in  his  dissenting  opinion  on  the 
bake-shop  case:  '*If  there  be  doubt  as  to  the  validity  of 
the  statute  .  .  .  the  courts  must  keep  their  hands  off, 
leaving  the  Legislature  to  meet  the  responsibility  for  un- 
wise legislation."  A  court  approaching  such  a  question 
and  feeling  bound  to  review  the  judgment  of  the  Legisla- 
ture might  be  expected  to  describe  briefly  the  existing  con- 
ditions, the  evils  which  the  statute  was  designed  to  remove, 
and  the  changes  that  had  resulted  or  would  result  from  it, 
before  approaching  the  discussion  of  the  constitutional  ob- 
jections to  the  new  system.  In  that  discussion  an  obvious 
desire  to  find  the  law  constitutional  would  be  expected. 

In  the  present  case  the  opinion  begins  with  a  paragraph 
reciting  the  facts  and  praising  ''the  industry  and  intelli- 
gence of  this  Commission."  The  second  paragraph  begins 
the  argumentative  part  with  a  most  significant  sentence: 
"The  statute,  judged  by  our  common-law  standards,  is 
plainly  revolutionary."  On  the  lips  of  a  lawyer  and  judge 
57  years  of  age  the  word  "revolutionary,"  like  the  word 
"socialistic,"  is  a  term  of  reproach  or  opprobrium  and  not 
of  argument.     With  his  opening  sentence  as  a  clue  to  the 


SOCIAL,  STATISTICS  AS  AX  AID  TO  THE  COURTS.  269 

writer's  frame  of  mind,  the  following  phrases  scattered 
through  the  opinion  gain  new  meaning:  "The  radical 
character  of  this  legislation,"  "this  departure  from  our 
long-established  law  and  usage,"  "this  indictment  of  the  old 
system,"  "the  new  statute  is  totally  at  variance  with  the 
common  law  theory, "  "  the  theory  is  not  merely  new  in  our 
system  of  jurisprudence  but  plainly  antagonistic  to  its 
basic  idea."  From  these  passages  one  not  familiar  with 
the  law  would  be  almost  sure  to  infer  that  there  is  a  strong 
legal  presumption  against  a  "revolutionary"  statute  "to- 
tally at  variance  with  the  common  law  theory."  A  careful 
reading  of  the  decision  shows  that  the  court  at  another 
point  of  its  discussion  grudgingly  admits  what  I  take  to  be 
unquestioned,  that  the  Legislature  has  the  right  to  revolu- 
tionize the  common  law.  If  so,  the  common  law  no  more 
furnishes  any  standard  by  which  a  statute  changing  it 
should  be  judged,  than  the  decision  of  a  lower  court  fur- 
nishes a  standard  by  which  the  reversal  of  its  decision  by  a 
higher  court  should  be  judged.  Then  what  is  the  use  of 
this  lengthy  discussion  of  the  common-hiw  tlieory?  Ap- 
parently it  reveals  a  frame  of  mind  somewhat  like  this: 
The  statute  is  so  totally  at  variance  with  the  common  law 
that  it  probably  violates  also  some  underlying  constitu- 
tional provision.  And  to  that  conclusion  the  court  comes 
when  it  says :  "With  all  due  respect  to  the  niciiihcrs  of  the 
commission,  we  beg  to  observe  that  the  statute  enacted  in 
conformity  with  their  recommendations  does  not  stop  at 
reversing  the  common  law;  it  attempts  to  icverse  the  very 
provisions  of  the  Constitution."  \n<l  the  court  finds  it 
unconstitutional  because  it  is  not  a  health  law,  or  in  its  own 
words:  "This  statute  .  .  .  contains  not  a  single  ])r()- 
vision  which  can  l)e  sai<l  to  make  for  the  safety,  health  or 
morals  of  the  employees."  The  evidence  already  pre- 
sented seems  to  indieat<'  that  it  was  a  hen  1th  hiw  in  the 
sense  that  its  intended  effect  was,  .ind  probably  its  actual 
effect  would  have  been,  to  dirninish  oi'  clirck  the  iiicre;ise  in 
the  number  or  [>ro|)ortion  of"  aeeifh'iits  ifi  IIm'  industries  af- 
fected. 


270  47    AMERICAN    LAW    REVIEW. 

These  three  cases  agree  among  themselves  and  represent 
many  others  in  that  each  tribunal  passed  upon  an  important 
question  of  fact  involved  with  the  questions  of  law  and  in 
so  doing  decided  the  case.  Each  was  a  question  of  social 
fact,  or  fact  about  a  group  average,  the  average  duration 
of  trade  life,  the  average  healthfulness  of  an  occupation, 
the  average  effect  of  a  given  method  of  compensation  upon 
the  frequency  of  industrial  accidents. 

Even  if  the  view  taken  by  many  judges  should  finally 
be  accepted  by  all  courts  and  the  decision  of  these  questions 
of  fact  made  by  the  legislature  in  enacting  a  statute  should 
be  left  in  all  but  extreme  cases  witliout  judicial  review 
still  the  difiiculty  of  drawing  a  line  between  the  extreme 
cases  and  other  cases  would  be  no  less  serious,  though  it 
might  arise  less  often.  If  the  court  should  refrain,  the  de- 
cision of  the  Legislature  would  be  final. 

If  an  appeal  on  such  questions  of  fact  from  the  decision 
of  the  State  court  of  last  resort  to  the  voters  were  per- 
mitted, as  has  been  proposed,  the  voters  would  face  the 
same  problem. 

With  whichsoever  of  these  three.  Legislature,  court,  or 
people,  the  final  decision  rests,  there  is  great  and  growing 
need  of  perfecting  our  agencies  for  ascertaining  social  fact, 
and  of  these  in  my  judgment  the  main  one  is  social  statis- 
tics. It  is  the  lack  of  convincing  social  statistics  upon  such 
problems  which  has  made  it  impossible  to  answer  with  con- 
fidence many  of  the  questions  judges  and  Legislatures  have 
assumed  or  felt  bound  to  answer. 

It  might  be  said  that  the  need  for  statistics  is  not  clear, 
that  the  brilliant  work  of  Mr.  Brandeis  in  defending  the 
Oregon  fen-hour  law  for  women,  which  illustrates  just  what 
is  needed,  is  far  from  statistical.  Such  work  was  probably 
the  best  that  could  be  done  under  the  conditions,  but  in 
many  fields  it  could  not  be  duplicated  and  like  any  collec- 
tion of  opinions  it  is  open  to  challenge  as  mere  opinion. 
Even  expert  opinion  is  a  poor  substitute  for  an  inductive 
and  exhaustive  study  of  the  fact. 


SOCIAL,  STATISTICS  AS  AN  AID  TO  THE  COURTS.  271 

Our  political  meclianism  for  the  inductive  determination 
of  social  fact  is  immeasurably  inferior  to  our  mechanism 
for  the  deductive  application  of  legal  principles  to  assumed 
states  of  social  fact.  Many  courts,  wisely  or  unwisely, 
have  felt  bound  to  review  and  decide  upon  such  issues  of 
fact  and  in  doing  so  have  often  traversed  the  judgment  of 
the  Legislature  and  sometimes  of  the  public,  and  at  the 
same  time  have  revealed  a  lack  of  desire  or  ability  to  in- 
vestigate for  themselves  or  do  more  than  weigh  the  evi- 
dence submitted  by  the  parties  in  the  light  of  their  own 
convictions  or  impressions.  Such  cases  are  sure  to  multi- 
ply and  the  criticism  of  the  courts  aroused  by  their  decision 
seems  likely  to  increase. 

In  such  cases  a  developed  system  of  social  statistics 
should  ascertain  the  facts  and  present  them  in  a  convincing 
way.  It  should  render  upon  these  multiplying  questions  of 
social  fact  somewhat  the  service  that  the  jury  system  does 
upon  questions  of  individual  fact.  Our  methods  of  ascer- 
taining social  fact  are  on  the  whole  less  developed  than  in 
any  other  great  industrial  country;  more  and  more  our 
courts  are  finding  it  necessary  to  decide  such  questions  of 
fact;  our  national  attitude  towards  the  courts  is  apparently 
changing  from  one  of  perhaps  extravagant  hiudatioii  to  one 
of  perhaps  excessive  criticism.  These  facts  seem  to  me  lo 
be  interdependent.  Tlio  asccrtainmeiil  .iinl  jnoof  of  the 
social  facts  should  not  he  left  to  the  iii(livi(hial  parties  to 
whatever  suit  may  arise,  '^riic  lacts  in  the  case  nt  bar  iiwiy 
be  anytliing  l)nt  typical  and  it  is  by  typical,  n'presentative 
or  average  facts  that  the  court  should  l)e  guided  to  a  de- 
cision. Into  this  field  of  exploration  our  American  statis- 
tics seem  destined  to  advance  and  by  so  doing  to  supple- 
ment a  defect  in  our  judicial  system. 

Waltkk  I'\  W'ii.i.cox 

COU.NEM,    U.MVEHSITV. 


<i;;ii;>/,> 


UNIVERSITY  OF  CALIFORNIA   AT  LOS  ANGELES 

THE  UNIVERSITY  LIBRARY 


This  book  is  DUE  on  the  last  date  stamped  below 


I'.irm  T.-0-].",/(-7,'?.5 


umvkiimTY  of  CAi.TFrn 

AT 

LOS  ANGELES 


;yillcox   - 

The   need  of 
social   stixtistics 
as  an  aid  to  the 
courts. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  560  914    4 


nm 


